The remedial objective of human rights legislation is to make the applicant “whole”.
On March 14, 2013, the Human Rights Tribunal of Ontario awarded over $450,000.00 in compensation to a school board supervisor in the case Fair v. Hamilton-Wentworth District School Board, 2013 HRTC 440. The employer was also ordered to reinstate the employee and pay $30,000 for injury to the employee’s dignity, feeling and self-respect.
In 2001, the employee developed generalized anxiety disorder, a reaction to her highly stressful job and her fear that, in making a mistake about asbestos removal, she could be held personally liable.
The Tribunal’s rationale for awarding back pay (which made up a little more than $419,000.00 of the total award) for the 2003 – 2012 time period was that the employer’s failure to accommodate began in 2003.
The Tribunal found that from April 2003, the employer failed to take steps to investigate possible forms of accommodation and from June 2003, the employer failed to offer the employee available, alternative work. There were two positions in June 2003 that the employer had available; one of which the Tribunal found should have been offered to the employee.
The employer’s argument that the employee had not demonstrated that she was medically fit to have returned to these positions was rejected on the basis that the employee testified that “she had discussed with her family doctor who agreed it was suitable” and it was “the employee’s personal phobia of returning to work in her previous position which caused the anxiety disorder…the work involved in [these two positions] was significantly different than her work in asbestos removal and did not cause her anxiety.”
The slow human rights adjudication process also adversely affected the employer. The employer argued that it would be unfair to order reinstatement in light of the length of time that passed, i.e. employment terminated in 2004; the award was made in 2013.
The Tribunal was not satisfied that this delay was the employee’s fault: The employee originally filed her complaint with the Ontario Human Rights Commission in 2004. She refilled her complaint with the Tribunal in 2009. The Tribunal did not fault the employee for the delay and found it was not “sufficiently prejudicial” to the employer to justify refusing reinstatement.
Take Away for Employers:
- This award undermines a commonly held perception that human rights complaints are not a significant source of financial liability.
- It is not uncommon for employers to allow the adjudication of human rights complaints to linger. Given the possibility of reinstatement and back pay remedies, employers should seek to expedite the adjudication of human rights complaints as quickly as possible.
- Early in the accommodation stage, employers should seriously consider providing disabled employees the opportunity at job openings. In this case, the Tribunal appears to have gone to great lengths to rationalize why the employee should have been given the 2003 job openings.